Johnson v. Utile

472 P.2d 335 (1970)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Ds sold their property to Ps. Ds agreed to the following terms: '. . . Seller agrees to drill 16 inch well, same area, same depth as existing irrigation well. Well to be tested, minimum 24 hours, at between 1,000 and 1,200 GPM [gallons per minute]. Seller agrees to drill and test well on or before close of escrow.' Ds orally informed Ps that the existing well on the property, which had been drilled and used for some time (Well No. 1), was no longer operative and that it was not to be considered included in the sale of the premises. Ps wrote a letter dated May 12, 1967, which provided in pertinent part: '. . . [Y]our suggestion to leave your test pump and a gasoline-powered motor on the new well [Well No. 2] for and in consideration of the Ps relinquishing any claim on the existing well [Well No. 1] would be satisfactory, provided that the equipment is in satisfactory operating condition, and, further, assuming that the new well has been tested and is capable of producing the amount of gallonage set out in the agreements referred to herein, and, of course, that the pump and motor are capable of pumping the water in the desired amounts consistent with the gallonage rating of the well itself. . . .' D proceeded to drill Well No. 2. He drilled the well to a depth of 105 feet and testified that it produced, over a 24-hour period, from 1,000 to 1,200 gallons of water per minute. Ps took possession of the property in June. They claim that the well never produced more than 300 gallons of water per minute and that in September 1967 the well went dry. Ps drilled a third well (Well No. 3), which apparently is operative and satisfactory. Ps sued Ds seeking damages for (1) the loss of Well No. 1, (2) expenses incurred in attempting to repair Well No. 2 and for drilling Well No. 3, (3) seed loss due to water shortage, and (4) attorney's fees and costs. Ps sued Ds seeking damages for (1) the loss of Well No. 1, (2) expenses incurred in attempting to repair Well No. 2 and for drilling Well No. 3, (3) seed loss due to water shortage, and (4) attorney's fees and costs. The judge awarded Ps damages as follows: (1) $ 3,200 for the loss of Well No. 1; (2) $ 419.15 for expenses incurred in attempting to make Well No. 2 operative; (3) $ 3,060 for the cost of Well No. 3; (4) $ 636 for seed loss; and (5) $ 1,500 for attorney's fees and costs. Ds appealed.